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G v CB FAM-2004-932 [2008] NZFC 103 (1 August 2008)

Last Updated: 2 November 2016

ANY PUBLICATION OF A REPORT OF THESE PROCEEDINGS MUST COMPLY WITH S 139 OF THE CARE OF CHILDREN ACT 2004

IN THE FAMILY COURT AT

_{FAM-2004-000932}

BETWEEN G (AKA H AND AKA C) Applicant

AND CB Respondent

Hearing: 29 February 2008

Appearances: Applicant in person Respondent - no appearance K Goldsbury for child

G Cameron to assist the Court

Judgment: 1 August 2008

RESERVED JUDGMENT OF JUDGE J G ADAMS [Appointment as guardian, contact]

GG (AKA H AND AKA C) V CB FC FAM-2004-000932 [1 August 2008]

Introduction

[1] This hearing deals with four applications brought by Mr C (as he currently prefers to be called).

[2] Two of the applications can be dealt with at the outset.

a) Mr C withdraws his application to remove these proceedings to the

High Court.

b) His application for an order that the child not be removed from New

Zealand cannot succeed because:- i) It has not been served, and

ii) I find that the child was already removed from New Zealand on 10 July 2007, well before Mr C’s application was filed, and has not been returned, and

iii) Consequently, the Court cannot be satisfied of the prerequisite to the relevant jurisdiction namely that the child “is about to be” taken out of New Zealand.

iv) Accordingly that application is struck out. [3] The remaining two applications are:-

1. To be appointed an additional guardian of the child, now aged 4 years, and
   

2. For contact.

[4] There are two preliminary jurisdictional points, one arising under s 126 Care of Children Act 2004, and the other under s 6. These apply to both of the applications.

[5] This case raises some interesting and important features. In order to marshal this judgment in a tidy manner I adopt the following headings:-

a) Background discussion

b) Care of Children Act 2004

c) Is process inquisitorial or adversarial d) Relevant facts

e) Is s 126 a bar to the application f) Is s 6 a bar to the application

g) Application to be appointed as additional guardian h) Application for contact

i) Conclusion

Background discussion

[6] These proceedings concern the legal relationship between a father and a child. The child was born before the commencement of the Care of Children Act

2004 but the applications are made under that Act. The child and mother were resident in New Zealand at the time the application was brought but they are now resident out of New Zealand.

[7] The law relating to guardianship changed significantly with the passing of the Care of Children Act 2004. Previously (leaving aside those situations where a father qualified to apply for a declaration that he was a guardian) a father could be appointed a guardian if the Court found that to do so was for the welfare of the child. Under the current law tests have changed.

a) The parents were in a de facto relationship with the mother at the time the child was born: s 17(2)(b), or

b) The Court applies the s 19(4) presumption in his favour and appoints him as guardian of the child unless the Court finds that to do so would be contrary to the child’s welfare and best interests.

[9] One of the unusual features in this case is that the mother has left New Zealand and has thereafter taken no active part in the proceedings. In an adversarial hearing the Judge would not have regard to material provided by the mother. If the process is inquisitorial then the child’s interests may require that I have regard to material in addition to that filed by the father and lawyer for child. Such an enquiry may provide significant context and lead to findings that would not have been made on the partisan evidence of the sole litigating parent filed in relation to these discrete applications.

[10] The hearing proceeded by submissions on the papers.

Care of Children Act 2004

[11] The purpose of the Care of Children Act, and the particular purposes of its provisions relating to guardianship, require scrutiny in order to inform the correct approach to this case.

[12] The Care of Children Act sets out its purpose in the first substantive section, s 3. Immediately following the statement of purpose is the fundamental principle now enshrined in s 4 that the welfare and best interests of the child must be the first and paramount consideration in proceedings such as these.

[13] Section 5 lists the principles which are relevant to the child’s welfare and best interests, the very first of which notes:

(a) the child's parents and guardians should have the primary responsibility, and should be encouraged to agree to their own arrangements, for the child's care, development, and upbringing:

[14] The requirement to give children reasonable opportunities to express their views is enshrined in s 6.

[15] Drilling down into more detail I note that s 3(1) provides:

3 Purpose of this Act

(1) The purpose of this Act is to—

(a) promote children's welfare and best interests, and facilitate their development, by helping to ensure that appropriate arrangements are in place for their guardianship and care; and

(b) recognise certain rights of children.

[16] Section 3(2)(a) explicitly serves the purpose of the Act by stating:

(2) To that end, this Act

(a) defines and regulates—

(i) parents' duties, powers, rights, and responsibilities as guardians of their children:

(ii) parents' powers to appoint guardians:

(iii) Courts' powers in relation to the guardianship and care of children: (b) ...

[17] Section 4(1) provides that the welfare and best interests of the child must be the first and paramount consideration

(a) in the ... application of this Act, for example, in proceedings under this

Act; and

(b) in any other proceedings involving the guardianship of, or the role of providing day-to-day care for, or contact with, a child.

[18] Section 4(2) makes it clear that the provisions of s 4(1) are not merely of generalised scope, but must relate to the

“particular child in his or her particular circumstances”.

A parent’s conduct may be considered only to the extent (if any) that is relevant to the child’s welfare and best interests.

[20] What conduct is relevant within the framework of s 4(3) is a matter to be determined by the Court in each particular case. Context and judgment will inform whether parental conduct is relevant to the welfare and best interests of the particular child.

Guardianship

[21] Guardianship is the legal status that confers rights and responsibilities in relation to the care and upbringing of a child. It is defined in s 15:

15 Guardianship defined

For the purposes of this Act, guardianship of a child means having (and therefore a guardian of the child has), in relation to the child,—

(a) all duties, powers, rights, and responsibilities that a parent of the child has in relation to the upbringing of the child:

(b) every duty, power, right, and responsibility that is vested in the guardian of a child by any enactment:

(c) every duty, power, right, and responsibility that, immediately before the commencement, on 1 January 1970, of the Guardianship Act 1968, was vested in a sole guardian of a child by an enactment or rule of law.

[22] The duties, powers, rights and responsibilities of a guardian, the means by which guardianship has effect, or is exercised, are described in s 16:

16 Exercise of guardianship

(1) The duties, powers, rights, and responsibilities of a guardian of a child include (without limitation) the guardian's—

(a) having the role of providing day-to-day care for the child (however, under section 26(5), no testamentary guardian of a child has that role just because of an appointment under section 26); and

(b) contributing to the child's intellectual, emotional, physical, social, cultural, and other personal development; and

(c) determining for or with the child, or helping the child to determine, questions about important matters affecting the child.

(2) Important matters affecting the child include (without limitation)— (a) the child's name (and any changes to it); and

(b) changes to the child's place of residence (including, without limitation, changes of that kind arising from travel by the child) that may affect the child's relationship with his or her parents and guardians; and

(c) medical treatment for the child (if that medical treatment is not routine in nature); and

(d) where, and how, the child is to be educated; and

(e) the child's culture, language, and religious denomination and practice. (3) A guardian of a child may exercise (or continue to exercise) the duties,

powers, rights, and responsibilities of a guardian in relation to the child, whether or not the child lives with the guardian, unless a Court order provides otherwise.

(4) Court order means a Court order made under any enactment; and includes, without limitation, a Court order that is made under this Act and embodies some or all of the terms of an agreement to which section 40(2) or section 41(2) applies.

(5) However, in exercising (or continuing to exercise) the duties, powers, rights, and responsibilities of a guardian in relation to a child, a guardian of the child must act jointly (in particular, by consulting wherever practicable with the aim of securing agreement) with any other guardians of the child.

(6) Subsection (5) does not apply to the exclusive responsibility for the child's day-to-day living arrangements of a guardian exercising the role of providing day-to-day care.

Is the process inquisitorial or adversarial

[23] An examination of the structure and words of the Act reveal ss 3 and 4 as primary provisions. The purpose of the Act described in s 3 and the first and paramount consideration enunciated in s 4 contain the same genetic imprint: the reference to the “welfare and best interests” of the child. Section 3 describes the trunk of the Act; section 4 describes the primary organic feature that is an identifier of the trunk.

[24] The purpose of the Act is described by utilising the verbs: “promote”, “facilitate” and “helping to ensure”; in relation to children and their guardianship; backed up by the recognition of rights of children. This provision makes no mention of rights of guardians. The provision is rooted in nurture.

[25] Accordingly it can be said that the provisions outlining the duties, powers, rights and responsibilities of the guardians are more in the nature of branches, to serve the central needs of the child, rather than to promote the power of guardians as an end.

[26] In Hawthorne v Cox [2007] NZHC 840; [2008] NZFLR 1, Heath J observed that the Act takes a more “child-centred approach to guardianship” where “a parent’s interests in the development of his or her child does not amount to a “right” but is more accurately described as “a responsibility or duty”. This is a policy shift from the central concept of the Guardianship Act 1968 which emphasised “custody and control over the upbringing of a child.” Heath J further observed that under this Act, guardianship is a “co-operative process” which requires the collaboration between guardian and the child on the one hand, and guardians themselves on the other.

[27] In Brown v Argyll [2006] 25 NZFLR 383 Priestley J observed that the purpose of the Act and the paramountcy principle are “clearly dominant” in the exercise of the Court’s discretion under the Act. The principles in s 5 (other than that in s 5(e) relating to child’s safety) are subsidiary.

[28] The most important responsibility for a guardian is to place the child’s welfare and best interests as the paramount consideration in the exercise of guardianship. The Court is required to make an enquiry into the welfare and best interests of the particular child taking into account all aspects of welfare including consideration of the child’s physical, mental and emotional wellbeing and the development in the child of standards and expectations of behaviour within our society: G v G [1978] 2NZLR 444 at 447 (CA). That 1978 statement from the Court of Appeal seems to sit aptly with the current 2004 Act.

[29] The paramountcy principle in s 4 places the welfare and best interests of the particular child in his or her particular circumstances as the first and paramount consideration in any proceeding involving the guardianship of or contact with that child. Parental conduct may be considered only to the extent that (if any) that it is relevant to the child’s welfare and best interests.

[30] Particular regard must be had, where appropriate, to the principles contained in s 5, in addition to any other matters relevant to any assessment of the welfare and best interests in the particular case. For example, it is recognised that the child’s parents and guardians should have the primary responsibility for the child’s care, development and upbringing; the child’s relationship between the child and and members of his or her family and family groups should be preserved; the child should have continuing relationships with both parents; the child’s safety must be protected and, in particular, he or she must be protected from all forms of violence; and the child’s identity should be preserved and strengthened.

[31] But none of those principles, broad though they be, can have dominance in a case where the welfare and best interests of a child are found to be at odds with those broad principles. For example, there is no presumption that a parent or blood relative is best suited to parenting or upbringing of a child. To start with the presumption is to put the rights of the parent before the welfare of the child. Although there is recognition that generally a child’s welfare is bound up with his or her family [see DGSW v M (1991 8 FRNZ 498] the Court of Appeal has held in D v S [2001] NZCA 374; [2002] NZFLR 116 that the paramountcy principle (then enshrined in s 23 of the Guardianship Act 1968, but now in s 4 of the Care of Children Act 2004) requires an enquiry in each case into the welfare of the child without any starting presumption as to what constitutes the welfare of children in general.

[32] In D v S (above) at [33] the Court of Appeal said:

The Court must weigh all relevant factors in the balance in determining what will be in the best interests of the child. It is necessarily a predictive assessment. It is a decision about the future. It is not a reward for past behaviour. There is no room for a priori assumptions. The reason is, as the Principal Family Court Judge Mahony said in VP v PM (1998) 16 FRNZ

621, 625-626;

“The expression “welfare of the child” embodies the most central and prevailing principle in family law concerning children. It is not defined in the statute because case by case the elements of welfare to be taken into account will vary, depending on the circumstances of particular children within their families and of families themselves, circumstances which vary enormously across a very wide range of factors which Family Courts are asked to take into account.”

...

... in the end, however, the Court must deal with the questions raised in a particular case. No two families fit the same mould or pattern ... the Court must look at the circumstances of “this child with this father, this mother, ... and these particular surrounding circumstances. The result necessarily has to be personalised to meet the welfare of each particular child”. (C v E unreported Judge Inglis QC 11 May 1987 FC Palmerston North FPO50/5/83.)

[33] Similarly the full Court of the High Court in K v G [2005] 3 NZLR 104; [2004] NZFLR 1105 observed at [21] and [22]:

[21] ... But often it is not simply a contest between competing custodial parents because in a real sense both parties may very well be perfectly able to provide for the needs of the child so that in so far as parenting qualities or attributes and environment are concerned, they cannot be distinguished. The issue is what will be best for the child – in his psychological, physical and emotional development, and overall welfare as he grows from where he is now.

[22] The focus has to return always to the welfare of the individual child and the attributes and qualities of their parents of course are relevant, but they are only part of the total mix. So too is the question of blood ties of biological parents. ...

[34] This examination of the statute law and leading cases persuades me that there is a hierarchy of provisions in the Act. The central touchstone is a fusion of ss 3 and

4. In respect of the Care of Children Act 2004 it is even more clear than it was under the Guardianship Act 1968 (although I suggest it was clear there too) that the guiding principles are those which promote the welfare and best interests of the particular child in their particular circumstances, facilitate development of the particular child within that context, and help to ensure that appropriate arrangements are in place for their guardianship and care. The arrangements which will be appropriate must be those which are found to better serve the development of the child and its welfare and best interests.

[35] The purpose of rights of guardians is to empower the guardians to serve those welfare and best interests of the child.

[36] In my judgment the Court is called upon to take an inquisitorial approach to these cases. The Act does not reflect a culture in which children are pawns in a contest between adults. Those provisions generally requiring representation of the children; requiring the child’s views to be ascertained; and empowering the Court to

call its own witnesses, and to call for specialist reports; all indicate an approach which is more inquisitorial than adversarial.

[37] That is not to say that the hearing process will take place in a novel manner. But it does mean that the Court is empowered to look beyond the limits of what the active participants place before it, in order to resolve the matter for the welfare of the child.

[38] Caution must be exercised so that the Court does not embark upon a wrong- headed frolic of its own devising but, within the appropriate bounds of a specialist jurisdiction, I am of the view that the Court can expand the material for investigation.

Relevant facts

[39] The file of litigation between the parents is comprised of five fairly full folders which barely fit into a cardboard file box. The proceedings include applications under the Domestic Violence Act, paternity, contact and guardianship proceedings.

[40] Although the respondent had plainly acknowledged the applicant as father of the child, she attempted to block the making of a determination of paternity in his favour. He subsequently managed to be registered as father of the child but that registration was set aside by reason of forgery. Subsequently I made an order on his application as to his paternity, and he registered his status as parent on the basis of that order. By the time I had made that order the respondent had ceased taking any part in the proceedings. She has clearly decamped from New Zealand with the child.

[41] The applicant is a serving prisoner. He has gained some notoriety for stalking, oppressive behaviour, and apparently vindictive behaviour. Among these features are breaches of protection orders. He has been serving a long sentence for (among other things) breaches of a protection order in respect of the respondent.

[42] Although the applicant has remained fervent in his desire to achieve a position as co-guardian of this child and to have contact with the child, some of his

evidence and submissions have been inconsistent as to pertinent facts. I have had regard to the totality of the files in this regard.

a) “CB made me promise to always be there for her and our baby and to support him which I have always done so, right up to the present day.” Applicant’s affidavit 19 March 2004. It is unclear to me in what manner he could have been said to have been supporting the child. The child was born in 2004. When he swore an affidavit on 8

February 2004 he was in prison and, as far as I can detect, has remained so. He does state that he was “placed on remand late October 2003 and during the course of part of my remand CB accessed my bank accounts for her needs and this was seen as her supporting and helping herself at my expense.”

b) “I have not seen A since he was born; the respondent has consistently refused to allow me any access with him whatsoever.”; Affidavit of applicant 7 July 2005. This is at odds with his affidavit of 8

December 2005 when he claimed to “have seen the child only once when I spent an hour with him and his mother at T Avenue, H, on 18

March 2004 when he was 1 month old."” In his submissions filed for the hearing on 29 February 2008 he stated “I had met my son at birth and in his first month of existence ...”.

c) The respondent claimed in submissions that his relationship with the respondent is “a lot better than what they were”. Yet he appears to have no knowledge where she is.

d) In his written submissions he says “I have spoken at length with my son on a number of occasions which has bettered the child’s life and now knows he does have a father that wants to see him. The child is happy knowing he has a daddy.” He claims to have received letters and cards from the respondent, and cards and letters from the child. The claims are not believable. I discuss this below.

[43] The applicant provided the alleged cards and letters to the Court. One birthday card allegedly written by his son says “Daddy. Have a happy birthday. I love and miss you and hope you come home soon to me and mummy. Love from A. XXX”

[44] An alleged letter from the child reads

“December 2nd 2007. Dear Daddy

It is me writing your son A. Me and mummy went on a plane ride and are living in a new house. It is a brick one and I go to kindy down the road. When are you coming home from the army. I am almost four now and I am a big boy now. Mummy says I look like you in the photos she has that I saw and I like the big car. Can I help you do up a car one day. Mummy reads your letters to me and I like the book of hotrods you sent me for Xmas. I hope you don’t get hurt with guns in the army. I hope you come home soon and you will have to get a plane to see me. For Xmas I just want my daddy. I love you daddy. A XOXOX”

[45] Another card reads:

“To my daddy G. I hope to see you one day. I miss having a daddy and miss you. Merry Xmas and I will see you in the next year. Love from your son A.

[46] A card allegedly sent by the respondent reads:

“G one day you will enjoy Xmas with your son but you will have to break away from your old life and associates if I will let that happen. Merry Xmas and make good for the new year.”

[47] Despite these apparently warm greetings, the applicant had clearly not been aware that the respondent had left New Zealand when she did. Despite the alleged correspondence and alleged telephone contacts, he was unable to provide the Court with any address for the respondent.

[48] In terms of assessing the evidential weight to be placed upon the documents allegedly from the child, I comment that they are unbelievably precocious writings for such a young child. I do not believe that they are genuine. Mr C has requested the return of those documents to him indicating that they are of sentimental value, but I choose to leave them on the Court file.

[49] A copy of a forensic assessment report of the applicant noted that he had been convicted of four counts of attempting to pervert the course of justice and five charges of breaching a protection order.

[50] There are significant discrepancies between the versions of the relationship between the adult parties from affidavits filed from 2004 onwards. I remind myself to exercise caution in weighing assertions in the respondent’s affidavits when she is not available for cross examination. Having done so, I find that material useful in assessing where the truth probably lies.

[51] The respondent was not straightforward in attempting to block the paternity order but I construe that as being a tactical move on her part in an attempt to avoid the applicant gaining any further access route to her life, she being in New Zealand at that time. The applicant seeks daily telephone contact with the child and seeks an order requiring the child to be brought to the prison to have contact with him.

[52] I find that the probable inference is that the respondent has fled New Zealand with the child in order to distance herself from the persistence of the applicant.

[53] I find that the applicant’s evidence and submissions lacks credibility. I find that he has not had any contact with the child; has not had any encouragement from the respondent towards having a relationship with the child; and has lied to the Court about the contacts and the vibrancy of his relationship with the child.

Is s 126 a bar to the application?

[54] Section 126 Care of Children Act 2004 provides:

126 Personal jurisdiction

(1) The Court has jurisdiction under this Act in any of the following cases: (a) if a question of guardianship of a child, or of the role of providing day-

to-day care for a child, or of contact with a child, arises as an ancillary

matter in any proceedings in which the Court has jurisdiction; or

(b) if the child who is the subject of the application or order is, when the application is made, present in New Zealand; or

(c) if the child, a person against whom an order is sought, or the applicant, is, when the application is made, domiciled or resident in New Zealand.

(2) Despite subsection (1), the Court may decline to make an order under this Act if—

(a) neither the person against whom it is sought nor the child is resident in

New Zealand; and

(b) the Court is of the opinion that no useful purpose would be served by making an order or that in the circumstances the making of an order would be undesirable.

(3) Nothing in this section applies to an appointment (of an eligible

[spouse or partner of a parent] as an additional guardian) under section 23.

[55] I find that the child left New Zealand in July 2007 and has not returned. I find that it is a reasonable inference that his mother accompanied him. Accordingly, neither the person against whom the order is sought, nor the child, is resident in New Zealand. Section 126(2)(a) is engaged.

[56] This Court should not take jurisdiction if it is of the opinion that no useful purpose can be served by making an order or that in the circumstances the making of an order would be undesirable: s 126(2)(b).

[57] There is no simple approach as to how the discretion given to the Court under s 126 is to be exercised but the overriding consideration must be the paramountcy principle in s 4, the purpose of the Act in s 3 and the sub-principles in s 5: Re B (Infants) [1971] NZLR 143 (CA). This principle has been emphasised in numerous High Court and Family Court decisions including: Wallis v Chapman [1993] NZFLR

429; Lehartel v Lehartel [1993] 1 NZLR 578; S v K (HC Auckland HC 46/96/5

December 1996 Elias J) and L v L (FC North Shore FAM 2006-044-1037, 13 March

2007 Judge Ryan).

[58] In Q v B [Custody] [2005] NZFLR 337 where the child was resident overseas, Judge Strettell outlined the following relevant factors as being among those to be considered when deciding whether the Family Court should exercise its discretion and accept jurisdiction. The factors include:

a) the length of the child’s residence overseas;

b) the circumstances in which the child left New Zealand and the likelihood that the child may be returned to New Zealand in the foreseeable future;

c) the welfare and best interests of the child and the principles in s 5 of the Act;

d) the views and wishes of the child; and

e) whether there is machinery by which a New Zealand order might be registered or enforced in the overseas country.

[59] In Brookers Child Law at CC126.09 the opinion is expressed:

“It may be difficult to persuade the Family Court to accept jurisdiction where the assessment of the child’s welfare and best interests would necessitate a broad inquiry into an overseas environment.”

[60] In S v K (above) Elias J held that it was “undesirable” within the meaning of s 5(2) of the Guardianship Act 1968 (equivalent to s 126(2) of the Care of Children Act 2004) for the Court to undertake such a broad inquiry which would involve an assessment of the family home in Australia and how the child would fit into it, by a New Zealand Court.

[61] The respondent has a protection order against the applicant who is currently serving a sentence arising from several breaches of that protection order. The respondent has had no contact with the child, and although the child may develop a curiosity about an absent father, the applicant is not personally significant to the child, now aged four years.

[62] The applicant claimed, in submissions, to have been in close contact with the respondent’s sister and to have received information from her. In the course of submissions on 29 February 2008 he asserted that he knew the respondent’s address in Australia. This is not reconcilable with the fact that he could not provide an address for service for her in relation to the application to prevent removal.

[63] The departure of the respondent from New Zealand in July 2007 casts a serious question over the genuineness of the letter dated 20 August 2007 which he

alleges she wrote to him (Exhibit “A” to his affidavit of 26 November 2007). The inference I draw is that when he advanced that document, which I regard as a forgery, he was not aware that she had departed from New Zealand.

[64] There is no evidence to suggest that the respondent will return to New Zealand, nor that the child will be returned to New Zealand. I infer that she is unlikely to do so. When she departed from New Zealand, the applicant had not been appointed a guardian, although his application was before the Court.

[65] In this case it is impossible to inquire into the overseas environment of the child. But even if it were possible it would be undesirable to do so: S v K (above).

[66] I repeat that the applicant has an extensive history of oppressive and stalking behaviour.

[67] In any significant sense, the applicant has never exercised rights of guardianship, nor performed the duties of a guardian. There is every reason to believe that the yoking of these parties, as joint guardians, will only cause mischief for the respondent, and distress for the child, who must depend upon her as his caregiver.

[68] In all these circumstances I find that no useful purpose will be served by making an order appointing Mr C a guardian. The likely result of making such an order is that the mother and child would be pursued and victimised. It is not a situation which would be in accord with ss 3 and 4 of the Act.

[69] Accordingly I decline to take jurisdiction under s 126 and consequently the applications for appointment as a guardian and for contact are dismissed.

Is s 6 a bar to the application?

[70] Section 6 requires the Court to provide the child with “reasonable opportunities” to express their views, and to take them into account, in matters which affect the child.

[71] In a case concerning the exercise of s 126 (L v L) (above) Judge Ryan held that the requirements of s 6 applied not only to the substantive issue of guardianship, but also to the issue of personal jurisdiction under s 126. That case involved a 10 year old Korean boy whose paternal aunt had applied to be appointed as an additional guardian for purposes of obtaining a student permit for the child in New Zealand. The child wished to continue his education in New Zealand. Judge Ryan took account of those views but held they were not to be determinative. In that case the jurisdiction was declined on the basis that the evidence failed to establish, on the balance of probabilities, that the child’s welfare and best interests were not being met in Korea.

[72] In C v S [2006] NZHC 495; [2006] 3 NZLR 420 Randerson J held that a child a little over four years at the date of the hearing was able to express herself verbally, and should have been given the opportunity to express her views. He noted that “with a child of tender years, it is important that [the child’s] views be put in context”.

[73] Nevertheless, the Court retains the discretion to give such weight to the child’s views as it considers appropriate in the circumstances of the case: C v S (Court of Appeal, CA 115/06, 18 October 2006, William Young P, Robertson and Arnold JJ). At para [9]:

“Despite the generality of the language of s 6, it must be applied in a sensible way. There is not much point in requiring a Court to ascertain the views of a child who is not capable of having or forming a view which is material. As to this, we see some flexibility in the expression “reasonable opportunities”. We accept, as Randerson J did, that even a child as young as four could have and express views which might be material to her care arrangements and which therefore ought to be taken into account when decisions are being made about those arrangements”.

[74] In the present case, the child’s whereabouts cannot be ascertained. The Court is unable to obtain any independent expression of the child’s views. The respondent has not made herself available to be followed and attempts for contact by Mr Goldsbury as lawyer for child have been unsuccessful. Accordingly he has been unsuccessful in ascertaining the child’s views.

[75] In his submissions Mr Golsbury states:

He proved difficult to locate. I have not had my telephone calls returned and I have not heard back from the respondent. ... The child has never met his father. For most of the child’s life his father has been in prison. The child has no knowledge of his father or any relationship with him. The child is unable to express a view on whether he wants the applicant to be his guardian. The child is not capable of expressing any views on the issue given his age and the fact that he does not know the applicant.

[76] It may well be that was has been attempted by Mr Goldsbury amounts to “reasonable opportunities” to enable the child to express his views. I think that those circumstances place this case in an unusual category. The child has been given “reasonable opportunities” to express views but has been unable to express views by reason of not being able to be located by lawyer for child.

[77] The lack of ability to obtain real views from the child adds weight to the common sense approach to s 126 that the New Zealand Court should not exercise jurisdiction in a case like the present. The Court is powerless to engage in the kind of enquiry which would provide a balanced judgment on the issue. That is likely to be a larger factor where the child is older but, in a structural sense, it points up the unsatisfactoriness of making important decisions about a child when the Court is in a vacuum as to the child’s actual circumstances and views.

Application to be appointed as additional guardian

[78] In the event that I am wrong in dismissing the applications under s 126 I

consider the application to be appointed a guardian on its merits.

[79] In para [8] of this judgment I described the two routes by which the applicant may succeed in being appointed a guardian: s 17(2)(b) or s 19(4).

De facto relationship

[80] Section 17 of the Care of Children Act 2004 provides:

17 Child's father and mother usually joint guardians

(1) The father and the mother of a child are guardians jointly of the child unless the child's mother is the sole guardian of the child because of subsection (2) or subsection (3).

(2) If a child is conceived on or after the commencement of this Act, the child's mother is the sole guardian of the child if the mother was neither—

(a) married to[, or in a civil union with,] the father of the child at any time during the period beginning with the conception of the child and ending with the birth of the child; nor

(b) living with the father of the child as a de facto partner at any time during that period.

(3) If a child is conceived before the commencement of this Act, the child's mother is the sole guardian of the child if the mother was neither—

(a) married to[, or in a civil union with,] the father of the child at any time during the period beginning with the conception of the child and ending with the birth of the child; nor

(b) living with the father of the child as a de facto partner at the time the child was born.

[(3A) For the purposes of subsections (2) and (3), the mother and father of a child may be in a de facto relationship even if—

(a) either parent is under 16; or

(b) either parent is aged 16 or 17 and consent for the relationship (as referred to in section 29A(2) of the Interpretation Act 1999) has not been given.]

(4) On the death of the father or the mother, the surviving parent, if he or she was then a guardian of the child, is the sole guardian of the child.

(5) This section is subject to sections 18 to 34, and therefore does not limit or affect the appointment of 1 or more additional guardians (for example, an additional testamentary guardian of the child appointed by the deceased parent under section 26(2)) or an order (relating to guardianship of the Court) under section 33(1).

[81] The relevant issue under s 17 in this case is whether the parties were living in a de facto relationship at the time of the child’s birth. The term “de facto” relationship is not defined in the Care of Children Act, but is defined in section 29A of the Interpretation Act 1999.

[82] Section 29A of the Interpretation Act 1999 provides:

[29A Meaning of de facto relationship

(1) In an enactment, de facto relationship means a relationship between 2 people (whether a man and a woman, a man and a man, or a woman and a woman) who—

(a) live together as a couple in a relationship in the nature of marriage or civil union; and

(b) are not married to, or in a civil union with, each other; and

(c) are both aged 16 years or older.

(2) Despite subsection (1), a relationship involving a person aged 16 or 17 years is not a de facto relationship unless that person has obtained consent for the relationship in accordance with section 46A of the Care of Children Act

2004.

(3) In determining whether 2 people live together as a couple in a relationship in the nature of marriage or civil union, the court or person required to determine the question must have regard to—

(a) the context, or the purpose of the law, in which the question is to be determined; and

(b) all the circumstances of the relationship. (4) A de facto relationship ends if—

(a) the de facto partners cease to live together as a couple in a relationship in the nature of marriage or civil union; or

(b) one of the de facto partners dies.]

[83] Section 29A(3) requires that the Court must have regard to the context and purpose of the relevant law which, in this case, is the Care of Children Act, and all the circumstances of the relationship in order to make the determination.

[84] In essence the applicant has deposed that he and the respondent were in an exclusive sexual relationship from February 2003 to November 2003 and that he was providing emotional and financial support for her and his child during, and at the time of the child’s birth. He states that they had a mutual commitment to raising their child together. The respondent confirms that there was a dating relationship between them until approximately August 2003. She says that from approximately March 2003 to approximately August 2003 she would stay overnight at his home during the week. However, her belongings remained at her mother’s home and she would always return home. She deposes that she was not living with him when the child was born. The applicant was in prison when the child was born. She denies having received any financial or emotional support from him.

[85] In an affidavit sworn on 27 July 2004 she says:

“I admit that I had a short de facto relationship with the applicant. ... The applicant and I were living together for approximately one week during August 2003. Prior to this, we had been dating since approximately February 2003 and had been living together on and off for about eight months.”

[86] I am mindful of the caution I expressed earlier concerning the affidavit evidence of a party who is not available for cross examination. I find that the parties were in an exclusive sexual relationship from about February or March 2003 until October 2003. I find that the respondent stayed at the applicant’s home for periods of days at a time, but that she retained a home base at her mother’s home.

[87] I find that the parties lived together for a very short period in August 2003 but that the relationship rapidly reverted to the dating relationship which had formerly existed.

[88] I find that there was no mutual financial dependence or long term planning.

[89] I find that the relationship of the parties, by November 2003, was no longer on as cordial a footing as at some earlier times.

[90] I find that the parties were not in a de facto relationship at the time the child was born in February 2004. The relationship was of short duration; there was no real inter-dependence of financial or emotional support; there was insufficient stability to permit reasonable comparison of this relationship with one under the solemnity of marriage. In all, it was a short-run relationship which rapidly proved to have been unwise.

[91] There is a gulf of difference between a sexual relationship where the parties happened to have been cohabiting for a short period, and a true de facto relationship, which could be considered akin to a fully rounded marital relationship. On a balanced evaluation of the facts and assertions of this case it simply does not qualify.

[92] Accordingly the applicant cannot qualify as a guardian pursuant to s 17.

Presumption under s 19

[93] Section 19 of the Act provides:

19 Father who was not mother's spouse[, civil union partner,] or de facto partner may apply to be appointed as guardian

(1) If, because of section 17(2) or (3), a child's mother is (or was at the time of her death) the sole guardian of the child, the child's father may apply to the Court to be appointed as a guardian of the child.

(2) The father may apply to be appointed—

(a) as a guardian of the child as well as the mother or a testamentary guardian appointed under section 26; or

(b) as a guardian of the child instead of the mother or a testamentary guardian appointed under section 26.

(3) An application under subsection (2)(b) must include an application under section 29 for an order depriving the mother of the guardianship of her child or (as the case requires) removing the testamentary guardian from office.

(4) In response to an application under subsection (2), the Court—

(a) must appoint the father as a guardian of the child, unless to do so would be contrary to the child's welfare and best interests; and

(b) must determine any included application under section 29 in accordance with that section.

[94] Different considerations apply in respect of s 19. The applicant is presumed to be a guardian unless it would be contrary to the welfare and best interests of the child for him to be so appointed.

[95] In exercising the discretion under s 6(3) of the Guardianship Act 1968 (the former equivalent to s 19 Care of Children Act) the Court tended to place the burden on the applicant father to prove, on the balance of probabilities, that there was no grave reason that the appointment was contrary to the welfare and best interests of the child: K v B [1991] NZFLR 168; In the Guardianship of B [1986] 4 NZFLR 306.

[96] In K v B (above) the father’s application failed because he had failed to show that his appointment as a guardian would, in the circumstances, enhance the welfare of the child and because his dedication to the welfare of the child was in doubt.

[97] The new provision under s 19 of the Care of Children Act 2004, shifts the presumption and therefore shifts the focus of the inquiry.

[98] Some of the cases decided under this provision have not addressed the issue, noted earlier in this judgment, as to the inquisitorial nature of the Court’s function. For example in M v H [Guardianship] [2007] NZFLR 292 Judge Mill noted that the provisions of s 19, in a practical sense, often cast a burden on the respondent mother to show that the appointment should not be made. In BTP v DJR (FC Wellington FAM 2002-091-314, 18 December 2006, Judge Grace) it was said that the party opposing the appointment of the father as an additional guardian of the child must put forward some evidence upon which the Court could reach an informed view that the appointment is or is not in the welfare and best interests of the child. In that case the father was actively involved in the children’s lives as a competent and caring parent. The issue was whether the parent’s inability to communicate was of such a nature to make it impossible to parent the children without conflict. Judge Grace appointed the father because to do otherwise would “in due course send a message to the children that the father was not capable or able to take on the responsibility as a guardian”.

[99] Because I have reached the view that the Court’s essential function is inquisitorial I prefer an approach whereby the Court is charged to consider the “welfare and best interests of the child” and to consider the material before it and, if necessary, to enlarge that pool of material. This approach is very much in line with the approaches of Judges Mather, Clarkson and Ellis in three decisions under the former legislation.

[100] In McDermott v Kena [2001] 21 NZFLR 954, Judge Mather said

“Where however a best interests test is required, the onus of proof is less pronounced. It is the Court’s task to attempt to identify in an objective way, whether the making of the orders sought will in fact promote the interests of the child”.

[101] In Cable v Ryan (DC, North Shore, FP366/98, 12 September 2001), Judge

Clarkson stated

“It seems to me to go too far to place such a burden upon an applicant father. The difference may be a subtle one but I consider that the burden is upon the applicant is to demonstrate that to appoint him as a child’s guardian is in her best interests. That seems to me to be a slightly lower burden than the demonstration of “positive benefits”.

[102] In Re the Guardianship of ACL [2002] NZFLR 165 Judge Ellis cited those decisions with approval and followed them. He stated “It is indeed for the Court to weigh the evidence objectively to satisfy itself whether the making of the order is or is not in the child’s best interests ... the standard of proof is on the balance of reasonable probability.”

[103] Judge Inglis QC in the text New Zealand Family Law in the 21st Century

(2007) at page 344 offered the opinion:

“It is suggested that the proper approach to the application of a natural father under section 19 is, like most other procedures under the 2004 Act, inquisitorial. There is no a priori assumption that the father’s appointment will be in the child’s welfare and best interests or contrary to them.”

[104] Brookers Child Law at 19.02 comments as follows:

“Stating that s 19 establishes a presumption that appointment of a child’s father as a guardian will be in the child’s welfare and best interests may be stating the position too strongly. The question of the father’s guardianship only arises when a father applies under s 19, but when an application has been made, the Court must weigh the effect of the father’s guardianship on the welfare and best interests of the child. Where a father’s application is unopposed, the Court must still consider the available evidence before making the appointment. If the evidence is evenly balanced, the father should be appointed, because it has not been proved that the appointment is contrary to the child’s interests.”

[105] Both the Inglis text and the Brookers text support adoption of an inquistorial process.

[106] Although the present formulation of the law creates a very strong presumption, the law nevertheless contemplates that there will be situations where it will be contrary to the welfare and best interests of a child for a father to be appointed a guardian. The usual rule now is that the father is appointed a guardian. An ordinary range of poor communication or awkwardness between parents will not prevent the appointment of the father as a guardian under s 19.

[107] However, the ascertainable facts in the present case take it to a special category. The facts that the father has been serving several years of imprisonment for offences including four breaches of a protection order in respect of the

respondent; that he has deliberately lied and presented false documents to the Court to advance his claim; and that the respondent has fled the country with the child (inferentially to distance herself from the applicant, and seemingly for good purpose); makes a significant difference. Even without taking into account material from the respondent’s own affidavits, there is a very substantial case that speaks against granting the application.

[108] I find that it would be contrary to the welfare and best interests of the child for the applicant to be appointed a guardian, despite the fact that the respondent has ceased taking any part in the proceedings.

[109] I find that the respondent is not fit to be a guardian of this child. I infer that he has been seeking to oppress her, to pursue and harass her. That is not an appropriate environment to encourage the upbringing of a young child. It is a situation that is likely to detract from the environment for the child and is completely inimical to the purpose of the Care of Children Act as discussed earlier in this judgment.

[110] The exception in s 19(4) can properly be compared to the provisions in s 29(3)and (4) which permit a guardian to be removed. It is contrary to the welfare of a child for a biological parent to be permitted to hound the child or the other parent in a way which can be predicted as being obstructive to the child directly and indirectly. This appears to be such a case. If the applicant were already a guardian, this is a case in which it would be appropriate to remove him.

[111] I dismiss the application to appoint the applicant as a guardian pursuant to s 19.

Application for contact

[112] In the event that I am wrong in dismissing the application for contact under s 126 I consider the application for contact on its merits.

[113] In submissions the applicant clarified that he sought an order requiring the child to be brought to the prison from time to time to see him so that their

relationship could develop, and in his written submissions he sought daily telephone contact.

[114] Section 48(1) governs the Court’s ability to make contact orders as a form of a parenting order. The applicant does not need to be a guardian in order to apply for contact; a parent may apply: s 47(1)(a).

[115] The Court’s obligation is to treat the child’s welfare and best interests as the first and paramount consideration. The decision must focus on the child’s needs and welfare rather than on a parent’s wishes or rights. In Haslett v Thornton [2000] NZFLR 200, at p 211, the full Court of the High Court embraced this approach in the following terms:

“The ‘right’ of access is the right of the child to have healthy, beneficial contact with each parent. Despite views sometimes expressed, it is not the

‘right’ of the parent. What is necessary for the child’s welfare cannot be measured in arithmetical or mathematical terms.”

[116] Section 5(a) and (b) indicate that, in considering whether or not to grant contact to a parent, the Court must take into account that the child’s parents and guardians have the primary responsibility for their child’s care, development, and upbringing and that the child should have a continuing relationship with both parents. While this cannot be said to create a presumption that a parent shall have continuing contact with his or her child, it does suggest that the starting point of the enquiry must be that parental contact will be granted unless there are best interests considerations that make it undesirable or harmful to the child.

[117] The Courts have shown greater readiness to deny contact where the applicant parent is a virtual stranger to the child: W v H [1971] NZLR 54; U v U (1981) DCR

204. It has been noted that there is a significant difference between granting contact with a view to preserving an existing parent-child relationship and granting it with a view to establishing or re-establishing a relationship: G v B [1982] NZ Recent Law

209; H v P (FC, Christchurch, 741/82, 17 December 1992). This issue has been given close judicial consideration both in relation to older children who have lost contact with a parent early in life, (G v B above) and in relation to infants having no bonding at all with one parent. (H v P above).

[118] In the present case I find that it is contrary to the welfare of this child to make a contact order. Apart from the s 126 factors (the order cannot be enforced) the business of bringing a four year old child to a prison to meet a parent whom he does not know against the wishes of the other parent seems very barren ground from which to grow a parent-child relationship. And in this case any order would be of no effect where the child is in an unknown overseas location.

[119] The situation may be quite different for the child of a serving prisoner where the child already has a vibrant relationship with that parent.

[120] For similar reasons to those given in respect of refusal to make a guardianship order, I regard the provision of contact between this father and this child as positively contrary to the welfare and best interests of the child. It is predictable that it would provide a battleground in which the child’s mother, inevitably his primary caregiver, would be destabilised emotionally and rendered less able to provide stability for the child. To provide contact in this case would involve a disproportionate sacrifice for the child.

[121] The application for contact is dismissed.

J G Adams

Family Court Judge